CALLENS & CALLENS

[2020] FCCA 2224

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLENS & CALLENS [2020] FCCA 2224

Catchwords:
FAMILY LAW – Parenting – discrete disputes over changeover, Christmas morning and summer holidays – issues resolved seriatim.

FAMILY LAW – Property – parties separating after 16 year relationship – wife seeking to retain the matrimonial home and that the husband retain his superannuation – husband seeking sale of matrimonial home – wife’s greater contribution and future needs – desirability of wife retaining home in large part because of the needs of autistic son – just and equitable that husband be paid a modest cash sum and that the parties assets be divided overall 65/35 in favour of the wife.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 90XT

Family Law (Superannuation) Regulations 2001 (Cth), Pt. 6

Superannuation Industry (Supervision) Regulations 1994 (Cth)

Cases cited:

Stanford & Stanford (2012) 247 CLR 108

Pierce v Pierce (1999) FLC 92-844

Applicant: MR CALLENS

Respondent: MS CALLENS

File Number: DGC 102 of 2020

Judgment of: Judge Burchardt

Hearing date: 17 July 2020

Date of Last Submission: 17 July 2020

Delivered at: Dandenong

Delivered on: 24 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Chislett

Solicitors for the Applicant: Bayside Solicitors

Counsel for the Respondent: Mr Thisleton

Solicitors for the Respondent: Southern Legal Group

ORDERS

1. That all previous parenting Orders be discharged.

2. That the parties have equal shared parental responsibility for the children X born in 2003 ("X"), Y born in 2005 ("Y") and Z born in 2007 ("Z”) (and collectively referred to as "the children").

3. That the children live with the Mother.

4. That the children X and Y spend time and communicate with the Father in accordance with their wishes.

5. That the child Z, spend time and communicate with the Father as follows:

   (a)Each alternate weekend from the conclusion of school on Friday (or 4.00pm on a non-school day) to 4.00pm Sunday;

   (b)By way of telephone contact at reasonable times as requested by the child:

   (c)For one week in each of the term holidays as agreed in writing between the parties, in default of agreement the first week with the father to be in substantial attendance;

   (d)From 12:00pm Christmas Day to 12:00pm Boxing day in 2020 and each alternate year thereafter;

   (e)From 2.00pm Christmas Day to 2.00pm Boxing Day in 2021 and each alternate year thereafter;

   (f)For the summer school holidays, for two weeks, provided that the father is on leave for at least 12 of the 14 days, and in default for so much time as the father is on leave.

   (g)On the weekend which includes Father's Day, from 5.00pm the preceding Saturday until 5.00pm Sunday;

   (h)At such further and other times as agreed between the parties in writing.

6. The mother be permitted to telephone Z when he is in the father’s care.

7. That the Father's time with the child be suspended as follows:

   (a)On the weekend which includes Mother's Day, from 5.00pm in the preceding Saturday until 5.00 pm Sunday;

8. For the purpose of changeover, unless otherwise agreed in writing, the father to collect the children from the mother’s address at commencement of time and return them to the mother’s residence at the conclusion of time.

9. In relation to Z's birthday, the parent that the child is not spending time with shall be able to collect the child from 4:00pm to 8.00pm that evening, or if the birthday falls on a non-school day, from 4.00pm until 8.00pm or other times as agreed between the parents in writing.

10. That the Mother and Father communicate about the children via text, email or any other means agreed to between the parties.

11. Each of the parents shall, as soon as practicable, advise and keep the other parent informed of the following:

    (a)Any serious illness or medical emergency involving the children whilst in their care, including all details regarding the injury, illness, hospital location, medical practitioners and treatment required:

    (b)Any specialist medical practitioners or allied health professionals for which children are attending upon; and

    (c)Their own contact details or change in residential address and mobile numbers.

12. Each of the parents shall be at liberty and are otherwise authorised to:

    (a)Attend all school events and extracurricular activities for which parents are normally invited to attend, including but not limited to, parent teacher interviews;

    (b)Obtain from the children's school, at their own expense, all notices, reports and school photographs;

    (c)Liaise with the administration and teachers of the school concerning the educational development of the children; and

    (d)Liaise with any medical practitioner or allied health professional who is attending upon the children and to obtain any reports and information concerning the children from such professionals.

13. Each of the parents and their servants and agents shall be and are hereby restrained from:

    (a)Abusing, belittling, rebuking or denigrating the other parent in the presence or hearing of the children;

    (b)Involving or exposing the children to any discussion which involves a dispute between either parent;

    (c)Discussing these proceedings or any related documents with or in the presence of the children; and

    (d)Allowing the children to be in the presence or hearing of any other person doing what is prohibited by the restraints of this order.

14. That both parties do all acts and things and sign all documents necessary so as to cause an updated passport to be issued for the children at any time that a current passport expires or is due to expire and where one party fails or refuses to do so within 14 days of the written request for same, the requirement for that party's consent will be dispensed with.

15. That the parents be permitted to travel with the children interstate or overseas for a period as agreed between the parties in writing and in default of an agreement, for a period of 4 weeks in total each calendar year.

16. That Order 15 above be conditional upon:

    (a)The travelling parent notifying the non-travelling parent in writing of any proposed travel at least 60 days prior to the commencement of travel; and

    (b)The travelling parent notifying the non-travelling parent an itinerary of proposed travel, an address for where they will be staying and a telephone number on which they may be contacted and evidence of return airline ticket of the children at least 2 weeks prior to departure.

17. In the event of any disputes with regard to these Orders, or other matters that parents would normally be required to discuss for the purpose of ensuring the child's best interest, health and wellbeing are met, both parents agree to attend mediation with the aim of resolving the issues, with a mutually agreed service provider.

PROPERTY MATTERS

1. That the Respondent wife pay to the husband $40,000 within 90 days of these orders being made.

2. That contemporaneously with the payment:

   (a)The Applicant husband do all such acts and things and sign all such documents as may be required to transfer to the Respondent, at the expense of the Respondent, all of his right in title and interest in the real property situate known as B Street, Suburb C and being the whole of the land more particularly described in Certificate of Title Volume ... Folio ... (“the real property”);

   (b)The Applicant husband remove the current caveat ... associated with the real property; and

   (c)The Respondent discharge the mortgage registered No. ... to National Australia Bank (“the mortgagee”) and indemnify the Applicant Husband in relation to the same.

3. That in the event that the whole of the payment in Order 18 has not been made by the date, the real property be forthwith sold altogether out of Court (“the sale”) pursuant to orders 21 to 24 inclusive.

4. The parties shall forthwith do all such acts and things and sign all such documents as may be required to put the real property situate at B Street, Suburb C on the market for sale by private treaty with a licensed estate agent to be nominated by the president of the REIV reserve price nominated by the agent.

5. That the parties equally share the costs of marketing and sale for the real property.

6. Upon the settlement of the sale of the real property, the proceeds of sale will be applied:

   (a)First, to pay all costs, commissions and expenses of the sale:

   (b)Second, to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Thirdly, to pay all outstanding council rates, water charges and fees; and

   (d)Fourth, $40,000 to the husband with balance to the wife.

7. Pending the sale:

   (a)The Respondent have the sole right to occupy the property;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)The parties be equally liable for the maintenance of the property including mortgage, council rates, water charges and fees associated with the property; and

   (d)Neither party shall further encumber the real property without the consent in writing of the other party

8. That in accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to Mr Callens (“Mr Callens”) from his interest in the Super Fund D Member No... (“the Fund”), the Trustee shall pay to Ms Callens (“Ms Callens”) an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $36,550 and there is to be a corresponding reduction in the entitlement that Mr Callens would have had but for these Orders.

9. That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Fund.

10. That this Order has effect from the operative time.

11. The operative time for this Order is four (4) business days after the date of service of a sealed copy of the Order upon the Trustee of the Fund.

12. Liberty to either party or the Trustee of the Super Fund D to apply to implement this Order.

13. That until the happening of any of:

    (a)the establishment of a separate account in the name of Ms Callens in the Fund; or

    (b)the transfer or “rolling over” into another superannuation fund of the payment split created by this Order; or

    (c)Ms Callens satisfies a condition of release and is paid the payment split which was created by this Order; or

    (d)Ms Callens executing a waiver of rights within the meaning of Section 90(XZA) of the Family Law Act in relation to the payment split created by this Order;

14. Mr Callens be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Fund a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the Fund give effect to this Order.

IT IS NOTED that publication of this judgment under the pseudonym Callens & Callens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 102 of 2020

MR CALLENS

Applicant

And

MS CALLENS

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting and property dispute.  The parenting issues are three confined disputes as to changeover, time on Christmas morning and time in the long summer holidays.  So far as property is concerned, the husband seeks a 60/40 division in the wife’s favour, whereas the wife seeks that she retain the former matrimonial home and the husband retain his superannuation.  For the reasons that follow, I will make orders that favour the mother’s position in relation to changeover and Christmas morning, with more nuanced orders for the long summer holidays. 

2. I will be further effecting a division of the parties’ property substantially, but not wholly, as sought by the wife.  The husband will keep the bulk of his superannuation and be provided with a smaller sum in cash to enable him to seek to purchase a new property.

Agreed Uncontroversial Matters

1. The father was born in 1971 and is of English extraction.  The mother was born in 1974.  The parties commenced cohabitation in 2002 and married in 2003.  They separated on 5 May 2018. 

2. The parties have three children.  X was born in 2003 and has high‑functioning autism (otherwise referred to as Asperger’s syndrome).  Y was born in 2005.  Z was born in 2007 and has very significant pervasive developmental delay characterised overall as autism. 

3. At the commencement of the relationship, the wife owned the matrimonial home at B Street, Suburb C, which was then valued by the parties in a prenuptial agreement at $200,000 with a mortgage of $43,000. Both parties worked during the relationship, although self‑evidently the wife took time off to have the children.  The father was the predominant wage earner and the mother the predominant home carer.  The parties separated in May 2018.  The wife says they also separated in 2015 but that matter was not pursued in the proceeding when it proceeded at trial. 

4. The husband received a redundancy payment of $95,999 in 2017 which was paid into an account controlled by the wife.  Effectively, none of it is left, although the husband seeks an add‑back of $36,000, which is said to have been withdrawn shortly after separation. The only other meaningful asset of the parties is their superannuation, of which the husband has $153,000 and the wife $9,000.

5. The children live in the predominant care of the mother pursuant to consent orders made on 16 March 2020.  The parents have equal shared parental responsibility but X and Y spend time and communicate with the father in accordance with their wishes.  Z spends time and communicates with the father each alternate weekend and the extant order is relevantly for “the summer school holidays as agreed in writing between the parties”.

The Parties’ Affidavits

1. Much of what is in the parties’ affidavits is described in the agreed matters above.  In his first affidavit filed 15 January 2020, the father detailed Z’s circumstances but it is perhaps sufficient to note that he and the mother give very different emphases to the extent to which Z is truly disabled. 

2. The mother’s first affidavit filed on 10 March 2020 concentrated on Z’s autism, noting his non‑verbal status and time at E School.  She deposed in relation to the husband’s redundancy payment as to the purchase of vehicles, a $25,000 extension put on to build a room for Z and four trips back to England, in relation to which most of the redundancy payment was spent.  She also took issues with the husband’s failure to contribute to the mortgage after separation in May 2018 until he moved out in September 2018, and complained that he had left gas bills, electricity bills and phone/internet bills in the cumulative total of $5,600.  The wife deposed to having a loan of $300,000 available to her were it to be required. 

3. The wife also appended as annexure “-2” the prenuptial agreement in 2002 which noted the value of the home at $200,000 and the mortgage at $43,000.  This document also noted that the husband had no entitlement to the matrimonial home, either then or were it to be sold. 

4. The husband’s second affidavit filed on 8 July 2020 deposed to his having been in a new relationship for two years.  He put separation as 5 August 2018.  He deposed to the mother being in a relationship with Mr F.  He put in issue the extent of Z’s disabilities and noted the alleged withdrawal of $36,794 from the mother’s account in May 2018 and sought that it be added back.  The husband annexed a number of texts from the wife of which he complained.

5. The husband also filed an affidavit from his new partner, Ms G, which deposed to the commencement of their relationship in 2018 and cohabitation in 2018.  Put broadly, she also deposes to her skills with children and her experience with children with special needs.

6. The mother’s final affidavit on 10 July 2020 noted that an Intervention Order taken out at the time of separation had expired.  She noted that although Z has a carer, this is only for two hours twice per week.  She deposes to all the funds originally withdrawn having been spent on unexceptional expenses.  Her partner, Mr F, has a potential injury claim of about $100,000. 

7. The wife also appended as “-1” a report dated 15 January 2020 from H Pty Ltd.  I have regard to the entirety of that report but note that at page 19 of 70 of the affidavit the mother was described as suffering from carer fatigue.  The report noted:

   Z’s behaviour has progressively gotten worse, particularly around his mother.  This can result in the family not being able to sleep until Z is ready, Z being verbally and physically abusive and breaking items in his home.

8. I also note that at page 21 of 70 of the affidavit the report described Z as:

   Z is a highly anxious child.  He can become easily heightened in situations which results in an increase in behaviours.  Z often hits people when they say words he doesn’t like.

9. It should be noted that the parties have filed jointly a report and valuation on the value of the former matrimonial home (exhibit R1), which asserts a value of $550,000 for the property in its current condition.  Its current condition is somewhat rundown and it seems highly probable that with some remedial work, it could be sold for substantially more, although where the money to do such work would come from seems to me to be doubtful.

The Opening and Evidence of the Husband

1. What follows is taken from my notes.

2. Counsel indicated in his opening that Z lives with the mother and spends each second weekend with the father.  There is no proposed alteration but there are three issues.  Changeover is presently at the mother’s home.  The parties live 30 to 40 minutes apart and the father wanted a neutral venue.  The next issue is Christmas morning.  The mother wants Z to spend it with her but the father would like what was described as the usual arrangements, so that the time alternated.  There was a major issue arising from the fact that the father wants two weeks in the long summer holiday.  The mother says he works full‑time but he says he hopes to get time off. 

3. So far as property was concerned, this is a small pool.  The matrimonial home is worth $550,000 with a mortgage of $261,000.  The wife has a car worth $10,000 and the husband has a car worth $4,000.  The husband’s superannuation is worth $153,000 and the wife’s is worth $9,000.  There was issue of some add‑backs.

4. When cohabitation commenced in 2002, the wife already owned the matrimonial home and there was a prenuptial agreement which was not satisfactory.  The value of $200,000 was at the start of cohabitation.  The mortgage was $41,000.  The mortgage is now $261,000.  A year before separation in May 2015, the husband received about $95,000 in redundancy pay which went into the wife’s bank account.  There was $36,000 at separation and the husband wanted that added back.  The wife’s superannuation was $18,000 at separation.  The husband conceded a springboard argument on the wife’s part. 

5. The two elder children are 17 and 15, and Z is autistic.  The wife says he will need a full‑time carer for the rest of his life.  The husband works full‑time and earns $47,000 as a factory worker.  The wife obtains approximately $50,000 in Centrelink benefits.  The husband seeks that the property be sold and a 60/40 division in the wife’s favour.  There is one further issue as to chattels, some of which the husband wanted.

6. The husband was called and adopted his trial affidavit as true and correct. 

7. Counsel for the wife cross‑examined.  The father conceded that Z can hit out when things are said that he does not like.  He said it did happen on occasions but not frequently.  He said that Z was calm when he was with him.  He had not seen this in recent times.  He is going on his observations.  There has been improvement in the last year and a half.  When it was put that Z wanted to make his own choices and have control, the father said this was not totally correct.  Z does not totally try to control him. 

1. He encourages Z to get things for himself.  He said that if you fall into the trap of doing everything for him then Z’s behaviours would continue.  He encourages Z to do basic tasks for himself.  He has seen him with his partner, her mother and her nephew.  They have had two years with Z.  His partner has skills and can cope with special needs.  There is a very positive relationship with all three.  It is a pleasure for him to see it and Z is happy to talk to them.  They have come to understand Z very well and help him to find the words he needs. 

2. When it was put that Z needed routines, the father said Z does respond well to routines but is okay with some changes.  The mother knows that Z can change routine.  She has some issues with his behaviours.  He cannot read her mind.  He conceded that the mother knows Z as much as he did.  He had read her affidavit. 

3. Counsel cross‑examined about paragraph 35 of the mother’s trial affidavit.  The father said that Z can get juice himself.  When stressed, Z gets upset.  He swears.  All his children swear.  He has not seen him act like that for a long time.  When cross‑examined about Z’s alleged hitting and punching, the father said when he had lived with Z, he had a very good sleeping routine.  He sleeps very well at his house.  He finds it hard to believe that Z does not sleep well.  He said this was not true.

4. It was put that the father had not gone to appointments for Z and had only recently contacted his teacher.  The father said he had not been told that Z had changed schools.  He is now in intermediate school.  He contacted the teacher and found out how Z was coping.  This was not his first contact.  He used to go to J School and had met the teacher.  It was put that he had not attended assessment sessions or been to speech therapy but the father he had not been told who the new speech therapist was.  So far as the NDIS was concerned, he was not on their listing.  She was down as the sole carer.  He was not kept in touch with what was happening.

5. When it was put to him that the mother was more au fait with Z and his needs, the father said was not the case at all and was completely untrue.  When it was put to him that Z’s outbursts and violent behaviours had escalated over the past 12 months, the father said they were not escalating with him.  He said if it was a calm environment Z will prosper.  The last 12 months had been stressful to a certain degree.  There had not been much change to routine. 

6. What stresses Z is him telling the father, “Dad, I need a house”.  He does not discuss property issues with his children.  He conceded there were differences between him and the mother in dealing with Z.  There had been 45 minutes coaxing to get Z to come to him on one occasion.  Z was overtired.  He stays in the car at changeover because he is not welcome in the house. 

7. The father was cross‑examined about the summer school holidays.  He says there is a shutdown at Christmas at work but every year is different.  He only gets four weeks leave per year.  He is available for one to two weeks, yet he knows the mother is agreeable to two weeks.  He also seeks three weeks in term holidays 1, 2 and 3.  The husband says he gets three public holidays also.  He said he could not categorically say he would be off work on each occasion.  If he was not there, his partner was suited to looking after Z.  She and her mother would take care of him.  He appeared to go on to concede that there would be occasions when he would be working.  Z was never physical while with his partner.

8. Cross‑examination then turned to the question of chattels.  The husband said he did not know where the video cameras were because the wife took them out of the house.  And there are two couches and two rocking chairs, and he needs to start from scratch.  The leather one was his and the others were hers.  He conceded he did not need them immediately.  The boxes from the wife’s youth were not controversial. 

9. He had agreed to split and copy photographs, and also to give the wife the photographs from before the marriage.  He was prepared to return VHS tapes and the lawnmower.  He said he had been given none of his tools.  He was prepared to return the mother’s book and the wall clock had already been given back.  He was prepared to give the television back. 

10. Counsel was cross‑examining from a list of chattels and it is possible that my notes may not entirely accurately reflect what took place.  I will give the parties an opportunity to remedy any deficiencies on my part.

11. The husband conceded that the communications with the mother were difficult.  They had a conflictual relationship.  He wanted the house sold.  He agreed that this would need cooperation in appointing an agent.  He did not mind which of the two agents he had nominated should undertake the sale.  When it was put to him that the house did not present well when valued, he said he had not been in the house for a long time.  The veranda did need to be repaired but it was a good location with a large block.  When it was put he had contributed his wages, the husband said, “Every single cent”. 

12. He conceded that there had been trips to the United Kingdom in 2003, 2008, 2011 and 2015.  They had also visited the Country K in 2017.  He remembered at least two holidays in Queensland.  He said his current salary was lower now.  On one occasion when they went to England, his mother had paid the airfares.  The other times they funded through savings.  The wife always had complete control of the finances.  He conceded the Motor Vehicle L car the wife had bought was appropriate.  There was no re‑examination.

13. Counsel formally read the affidavit of Ms G, who was not required for cross‑examination.

The Evidence of the Mother

1. Counsel called the mother, who confirmed her affidavits as true and correct. 

2. Under cross‑examination the mother said she did not want changeover at McDonald’s.  She did not approve at all, as they had been doing the changeover in its current form for two years.  It had not been an issue.  When it was put that there were problems with Mr F being present, the mother said that sometimes they were not even there.  She had not spoken to the father since Court starts.  He had refused to talk about his “back debt” (which I take to be the mortgage deficiency and the various utilities).  

3. I would interpolate and say that the mother’s answers were given under considerable pressure of speech, and there is no avoiding this, she simply vented about the so‑called back debts. 

4. The mother confirmed she wants every Christmas morning and the father wants every second Christmas morning.  She said they have a disadvantaged child who puts up the tree in November.  The father can have him from 12:00pm on his year and 3:00pm on her year.  She asked what would occur if the older children did not want to go. 

5. When it was put that so far as the summer holidays were concerned, it was not a comfort to her that the father’s partner and mother would be there, and the mother said this was as far as she knew.  His partner had refused to meet her the last time at Court.  The partner had never finished Certificate III but had only started.  If there was a problem, she did not know if the partner could cope.  He could have the children when he was not working. 

6. When it was put that she had not told the father who the treating professionals were, she said Z had been with him for two years.  It was just his lack of input into Z’s life.  Z is disabled.  He needs his dad. 

7. When cross‑examined about the prenuptial agreement, the wife confirmed that her own mother drew that up.  She had been married once before.  The mortgage was $41,000 at the start of the relationship.  She agreed with the valuation at $550,000 and that the mortgage was $265,000.  The wife gave further evidence about the problems with the back debt.  She has paid $15,000 in the last 12 months and the husband has paid $5000.  She has approval to pay him out.  She lives with Mr F.  They pool their income.  He is currently retired on a disability pension and has seizures. 

8. The wife conceded that the redundancy payment of $90,000 was down to $36,000 by separation.  When challenged about the figures at paragraph 53 of her trial affidavit, the wife said that $13,000 and $11,000 withdrawals were for the car.  Her father had put in the money for it and they repaid him.  There was $12,000 left after that.  $6,000 of it was spent until September when the husband moved out.  The extra $6,000 had gone on food for the teenage boys.  They paid $35,000 on their Country K visit and she had paid $10,000 on the back debts.  She had got $9,000 in super which had been drawn down for bills and general living.  If I understood it correctly, she said she had no superannuation left, (but her case outline concedes $9,000 left).

9. The husband pays child support as assessed but did not pay half the mortgage.  He had paid $200 on two occasions since 12 July 2018.  From 5 May 2017 until July 2018, he refused to pay.  She had to pay council rates too.  That is where the back debts came from. 

10. The mother denied talking about the proceedings with Z.  Z makes up stories and you had to take them with a grain of salt. 

Final Submissions

1. Counsel for the wife relied upon his case outline.  He said that there was no reason to have a neutral changeover and that the home was more comfortable.  If there was to be 45 minutes worth of coaxing, this was better done at home.  School holidays appeared to be a misunderstanding between the parties.  The father may well have the time and there is a shutdown anyway.  So far as Christmas Day is concerned, Z anticipates Christmas Day.  There are always some adjustments when he moves to different households with different parenting styles.  The husband deserves great credit for taking his case through to judgment, a concession, I think, very properly made. 

2. So far as property was concerned, the wife relied upon her written submissions.  The wife can make a small payment to the husband, who should keep his superannuation.  If there is a sale, it is clear the parties do not get on and there would be difficulties with cooperation.  There should not be any add‑backs because the expenses were reasonable.  Most of the $36,000 had been spent on the car. 

3. Counsel for the husband conceded that the changeover case of his client was not strong.  Christmas Day, however, was a standard order and Z should spend it with both parents.  The mother is just pursuing what she wants.  So far as school holidays were concerned, he agreed with the other side.  If you add in the public holidays, it is almost two weeks anyway.  The partner or the partner’s mother would be there if needed. 

4. So far as property was concerned there were no winners and it was a small pool.  The wastage argument asserted by the mother was not made out.  The parties’ holidays meant that they lived beyond their means.  The husband seeks an equalisation of superannuation and a 60/40 division to the wife.  He referred to the case of Pierce v Pierce (1999) FLC 92-844 (“Pierce”) as regards springboards. This was a 16‑year relationship. There should be a five per cent adjustment as to contribution and a further five per cent in respect of the section 75(2) factors. The wife’s income is about $50,000, whereas the husband’s income, which is taxed, is about $47,000.

Findings About the Witnesses

1. At the commencement of his evidence, I found the husband to be a good and direct witness but as his evidence went on, my initial impression somewhat changed.  He struck me as unprepared to make concessions and was anxious not to answer questions that appeared to him to be against his interests.  He was extremely dogmatic about the wife at all times and about what he wanted.  He struck me as being a slightly obsessive personality.

2. The wife’s evidence, as I have said, was characterised with what can only be described as vents, most particularly about what was referred to as the back debts.  Her hostility to the husband very much matched his to her and she vented again about the number of trips they had had to England, which were obviously consensual. 

3. It is clear, given the quantum of the mortgage in 2002 and now, that the parties simply lived beyond their means over a protracted period of time. 

The Parenting Issues

Changeover

1. The parties have been doing changeover at the wife’s home for over two years.  It has worked well enough.  Counsel for the wife is correct to say that if there are any difficulties, these will be better addressed in the home environment than in some public place that is less familiar to Z, for whom routine and familiarity are very important.  Counsel for the husband conceded his case on this point was weak and I agree.  Changeover will remain as it is.

2. The wife’s desire to have every Christmas morning with Z is all about her own desires.  The tenor of her evidence was very possessory in this regard.  Counsel for the husband is correct to say that it is entirely standard for orders to alternate Christmas and New Year time and the like.  Nonetheless, this is not a rule of law or even a practice.  Each case requires to be considered on its merits.  I accept that Z is an anxious child for whom routine is important and to whom change is often difficult. 

3. It appears he has a particular pleasure in Christmas and is anticipating it from November onwards.  He has spent every Christmas morning of his life with his mother (albeit a number of them also with his father when the relationship subsisted).  He has plainly spent Christmas morning in the matrimonial home for every Christmas of his life.  While in a sense I accept that this is unfair to the father, it is plainly in Z’s best interests that Christmas time remain as it is. 

The Long School Holidays

1. In order to understand my conclusion as to this aspect of the matter, it is appropriate to indicate my findings in relation to what the parties have said about Z.  I have no doubt that each of the mother and the father have honestly recounted their perceptions of Z when in their care.  It is clear from the objective material filed, annexed to the mother’s trial affidavit, that Z faces many and very considerable challenges.  One’s heart goes out to him and to his family and, of course, that includes his parents.

2. Nonetheless, and this is, I regret to say, not that uncommon in matters in this Court of this sort, the mother thinks Z is worse than the father does.  The mother recounts very disturbing and difficult experiences with Z and, indeed, I note that the independent report said that Z behaves worse predominantly with his mother.  The father’s evidence, however, is that Z is, so to speak, somewhat better when in his care.  It appears to me that his approach is more authoritarian and, of course, as a man, he is more physically imposing than the mother is to Z. 

3. I think that Z’s best interests will indeed be met by a two‑week period in the summer holidays but I also think that a total of one week in the care of third parties is, given Z’s difficulties, inappropriate also.  I propose to order that Z spend up to two weeks in the long school holidays with his father, provided that the father is able to be present for at least 12 of the 14 days.  If the father cannot be present for all but two of the days, then it should be as much time as the father is able to in fact take off and be present.

4. Some brief time with Ms G, whose unchallenged evidence suggests she gets along very well with Z and who is comfortable with her, is acceptable but further time than that is likely to be problematic for Z.  It is also likely to be problematic for the anxieties of the mother, which are themselves likely to redound upon Z’s consciousness and behaviour. 

Property

Stanford & Stanford (2012) 247 CLR 108

1. The Court’s first task, of course, is to ascertain the legal and equitable interests of the parties and determine whether a property adjustment is appropriate.

2. However, as in so many cases, this is a case where the basis upon which the parties conducted their financial affairs during the relationship has radically altered and each of them want a property adjustment, albeit in different terms.  It is plain just and equitable that there be one. 

The Pool

1. In my opinion, the pool consists relevantly of the value of the matrimonial home, $550,000; the husband’s superannuation, $153,000; wife’s superannuation, $9,000 (conceded in the case outline even though it has been spent) less liabilities, mortgage $265,000. 

2. I have not included the parties’ cars because these have no meaningful resaleable value.  They are simply a means of locomotion.  If sold, all the parties would end up with is another car, also merely a means of locomotion. 

3. I have not included the add‑backs that the husband seeks.  I accept that there was $36,000 left of his redundancy payment by the time the parties separated.  It had been spent in a fashion, so far as I can see, somewhat extravagantly by the parties but there is nothing to suggest either the husband or the wife wasted any more of it than the other.  It should be noted that for the mortgage to go from $40,000‑odd dollars in 2002 to $260,000 in 2018, the mortgage had increased steadily by approximately $15,000 a year.  The dissipation of the $90,000‑odd, trip to Country K and other similar expenses, is just part of the way in which the parties lived in excess of their income. 

4. I accept that the $36,000 was applied as to $23,000 towards the purchase of the wife’s car, which, as already noted, is accepted by the husband as having been an appropriate purchase.  The remainder of the funds has gone on living expenses.  The husband does not appear to have contributed to the mortgage for a substantial period of time and, although the wife’s complaints about what she described as the back-pay were given in a most exaggerated fashion, the fact is that the funds have simply not been disbursed in any untoward fashion and an add‑back is inappropriate.

Contribution

1. The wife owned the matrimonial home at the start of the relationship.  As Pierce makes clear, however, it is not a matter of the erosion of that contribution but, rather, a matter of calibrating what its worth should be looking backwards as at the date of trial.  Given the parties’ relatively modest incomes, it is questionable whether they might have been able to buy property at all, absent the wife’s original ownership.  The parties both contributed as best they were able to in the relationship, with the husband being the primary earner and the mother the primary homekeeper.  Nonetheless, they both contributed in a curiously negative way.  Their debts have gone steadily up.  I do not accept the wife’s complaints about the trips to England.  They were plainly jointly undertaken and involved, no doubt, a measure of benefit to both, even if the emotional resonance was greater on the part of the husband.

2. In all the circumstances in bringing these matters together, I would assess the contributions of the parties as being 55 per cent to the wife and 45 per cent to the husband.

Future needs factors

1. On any view of the matter, the wife will not be able to work for the foreseeable future.  The husband’s attempts, in his evidence, to suggest that the wife had considerable assistance of respite care are misconceived.  Z’s respite care is two hours twice a week, and many of the interventions that Z is involved in are no more than attempts to palliate the very considerable difficulties from which Z most unfortunately suffers. 

2. I accept that the wife will not be able to work.  I accept that she will have the very demanding task of looking after Z, who is now, it would seem, quite big enough and violent enough to represent at times a real risk to her both physically and emotionally.  While it is small wonder that she is described as having carer’s fatigue, I fully accept that she will continue to apply herself to Z’s care as a devoted mother.  Her future is going to be very much circumscribed, and while she, it would appear, has the good fortune to have the succour of a new relationship (about which I have been told very little, save that Mr F may come into some money at some point), she deserves serious consideration under this heading.

1. The husband has repartnered, and indeed did so almost immediately upon separation from the wife.  He is in what appears to be a settled and satisfactory relationship with his new partner.  Although his earnings appear to have decreased for some not entirely clear reason, there is nothing to suggest he will not be in gainful employment on an ongoing basis.  Indeed, the disparity in his position from the wife is perhaps illustrated by the fact that he has in excess of $150,000 superannuation, whereas even before she spent it, she only had $9,000.  Her affidavit evidence as to how her superannuation has been applied (paragraphs 106-107 trial affidavit) have not been challenged.

2. In all the circumstances, and once again bearing in mind that these sort of evaluative assessments are necessarily somewhat impressionistic, I would find that there should be an additional 10 per cent to the wife in respect of future needs.

Conclusion

1. This is one of those unfortunate cases where there is not just very much real cash to distribute. Neither party will be able to access their superannuation for some (perhaps not excessive) years. In trying to produce an outcome which is just and equitable it is in my view important given the particular circumstances of this case, to remember the importance of endeavouring, if it is possible to do so in a fashion that is just and equitable, to ensure that Z remains living in the house he has lived all his life. This brings into immediate relief, not the quantification of the 65/35 overall division I think would be just and equitable in a perfect world, but rather how it is be implemented. The Husband seeks that there be a 65/35 division of the parties non-superannuation assets and an adjustment by way of superannuation split to produce the result of which he intends. The wife seeks in effect that there be an overarching 65/35 adjustment so that in effect the husband achieves a very small cash payment and retains his superannuation.

2. The net pool including superannuation amounts to $447,000, 35% of that is $156,450. The husbands super is $153,000. I do not think that a final result in which the husband gets $3,450, and keeps his superannuation and walks away with no other cash whatsoever would be a just and equitable outcome to a 16 year relationship.

3. There is no absolute science to matters such as these. I think the Husband should get a sum of money which may assist him in re-establishing himself. I am going to fix this at $40,000. This is necessarily an arbitrary figure but in my view it balances the two competing considerations and is at the forefront of my thinking. On the one hand as I say I think to give the husband no cash whatsoever in circumstances such as these would be inappropriate. By the same token I think that to give the husband any further amount of cash is likely on the materials as they stand to cause to the house to be sold and thus place upon Z in particular an outcome it is clear he does not want. Although it is extremely regrettable that the mother has apparently involved Z in these proceedings to the extent that he is aware that he may lose his home, the fact is he is aware, and this is something that should be avoided if it is at all possible. In the circumstances, I will order the wife to pay the husband $40,000 within the given period and will order a superannuation splitting order such that the total of the pool as I have found it to be, be divided 65/35 in the wife’s favour. In my view, this represents a just and equitable outcome. I have drawn draft orders to reflect these contributions. I will also invite the parties to draw up a schedule in relation to the chattels and will arbitrate in short form any matters in disagreement.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 24 August 2020